Raise your hand if you, your photographer-friend, or any creative you know has been victim of blatant copyright infringement. Now, raise your other hand if that same person didn’t get further than a cease and desist after learning the insane costs associated with federal litigation? Good news for you and your photographer-creative-friends. On May 1, 2019, Congressmen from New York, Pennsylvania, Georgia, Texas and California introduced a House bill that would give small businesses, as well as creatives (or anyone) the opportunity to pursue copyright infringers in small claims court. The Copyright Alternative in Small-Claims Enforcement (CASE) Act, seeks to create a small claims court, within the US Copyright Office, for copyright infringement claims up to $30,000 and establish a Copyright Claims Board to oversee these cases. The text of the bill is 50+ pages. Correct us if we’re wrong, we’d bet the house you don’t want to read it. That’s why we read it for you. Here comes the breakdown.
THE PLAYERS
The Copyright Claims Officers will be comprised of 3 full time Officers, appointed by the Librarian of Congress, with 6-year terms, renewable by Librarian of Congress. Each officer must be an attorney w no less than 7 years of legal experience. Two/three Officers must have substantial experience in the evaluation, litigation or adjudication of copyright infringement claims. The third Officer must have substantial familiarity with copyright law + experience in the field of alternative dispute resolution.
The Copyright Claims Attorneys will be hired by the Register of Copyrights and must have no less than 3 years of substantial experience in copyright law. There must be at least 2 full-time Attorneys on the board at all times, to assist the Officers.
THEIR POSITIONS
The Officers. The Officers would essentially be a panel of trier of facts. They would hear the facts of the claim brought forth by the parties and render a decision, awarding money and, when necessary, injunctive relief—i.e., require takedown or destruction of infringing material. If parties decided to reach a settlement, they would facilitate that as well. Think Judge Judy. But with three Judy’s. No cameras. Just copyright infringement.
The Attorneys. One word: support. The Officers will have a huge responsibility and could not manage their roles without support. That’s where the Attorneys would come in. Their main role would be to support the Officers, however necessary, in order for them to perform their roles + duties outlined above. Essentially, lots of research + writing + prepping. If you watch How to Get Away with Murder, think Keating 5. Minus the murder, obviously.
THE COURT
Filing a Claim. Federal litigation can be expensive. Not an extra $2 for avocado expensive either. We’re talking $20,000 expensive. So, a small-claims Copyright court be a major win for creatives + entrepreneurs. In order to file a claim with the Copyright Claims Board, you will simply need to complete and submit an application, along with a filing fee of at least $100 (CASE is still only a Bill. ::queue School House Rock:: So, this number hasn’t been decided yet). If you submit an incomplete application, you will have 30 days to amend the file, from the date of notice. Good news—there would be no additional fees for amendments. Once you receive notification to proceed with service from the Board, you have 90 days to serve the respondent, or the person you’re dragging into court. Here’s the catch though, participating in a Copyright Claims Board proceeding is voluntary and the person you’re suing must agree be sued there, as opposed to a different venue.
Court from Home. As a creative entrepreneur, I’m sure you’ve “worked from home” many of days. Now, you can court from home. No, not court as in date—but court as in “please rise!”. While all proceedings before the Copyright Claims Board will take place at the Copyright Office in D.C., there is no requirement that you must physically be in the room. That’s right. You can Skype yourself into the proceedings. Bad hair day? No worries! You can opt for written submissions only. This is pretty much what the Jetsons had in mind.
Types of Claims. The Copyright Claims Board will only hear copyright infringement cases. A person bringing a claim before the Board must be the legal owner of the copyright they are claiming was infringed upon, at the time of the alleged infringement. In other words, if on Monday Copyright A is infringed upon and you become the owner of Copyright A on Wednesday, you can only sue for the infringement that takes place on Wednesday and beyond. The Board will also hear cases in which a party claims another party misrepresented itself as a legal owner of copyright. For example, you’re a blogger and receive a takedown notice from a model stating you’re infringing their copyright by using their photo on your site. You don’t panic because you have Creative Genius Law on your team. We do some digging and find out that the model doesn’t own a single copyright in the work. That’s misrepresentation on the model’s behalf. It is important to note, though, all claims must be for less than $30,000, otherwise, you will have to take your case to Federal court. Where it’s expensive and they won’t Skype in, if you can’t make it to court.
Types of Remedies. This part is important. Because money. If you find yourself in Copyright Court and on the winning side, you’ll have to determine how you want your money: do you want actual damages + profits OR do you want limited statutory damages? Remember, neither can exceed $30K. If you opt for actual damages + profits, the Board will consider whether the parties also agreed to mitigate the infringing activity (i.e.—destroy the infringing work), when making a determination on a dollar amount. Maybe you want you a sure shot, so you opt for limited statutory damages. If so, you want to make sure your copyrights are registered. With respect to works that were timely registered with the Copyright Office, statutory damages shall not exceed $15,000 per infringed work. With respect to works that were not timely registered with the Copyright Office, cut the number in half—damages won’t exceed $7,500 per infringed work. The Board will not make determinations of willful infringement, which means no punitive damages. However, in instances where there is conduct of bad faith, the Board may award attorneys’ fees and cost. Absent a knucklehead, you’ll foot the cost of the case.
On October 22nd, the U.S. House of Representatives overwhelmingly passed the Copyright Alternative in Small-Claims Enforcement (CASE) Act, 410-6.
The ball is now in the Senate’s court. If passed, it would be a HUGE win for creators and provide the creative community with more accessible and affordable means of protecting their works and enforcing their copyrights. We’ll be sure to update you once the Senate is prepared to vote. In the meantime, you can check out the bill here.